USCA Case #19-5042 Document #1775047 Filed: 02/26/2019 Page 1 of 9

[ORAL ARGUMENT NOT SCHEDULED]

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

DAMIEN GUEDES, et al.,

Plaintiffs-Appellants,

v. Consolidated Case Nos.

19-5042, 19-5043, 19-5044
BUREAU OF ALCOHOL, TOBACCO,
FIREARMS AND EXPLOSIVES, et al.,
Defendants-Appellees.

GOVERNMENT’S OPPOSITION TO PLAINTIFFS’

JOINT MOTION TO EXPEDITE

The government hereby opposes plaintiffs’ joint motion to expedite briefing

and oral argument. The motion would require these consolidated appeals—which

present important questions concerning the validity of a federal firearms regulation as

well as the President’s designation of an Acting Attorney General—to be briefed,

argued, and decided by this Court in less than 30 days. Plaintiffs’ rationale for such

extreme expedition is that the regulation will go into effect on March 26, 2019. But,

having failed to obtain a preliminary injunction against the regulation in district court,

the proper procedural mechanism for plaintiffs to seek relief from the regulation

pending future litigation is to file an emergency motion for injunctive relief pending

appeal. Plaintiffs cannot evade meeting the standards for that extraordinary relief by

simply asking this Court for an incredibly accelerated schedule on their appeal, which
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would not provide sufficient time for the government to brief the issues and, more

importantly, would deprive this Court of adequate time to deliberate and resolve

them. That said, the government is prepared to expedite briefing and oral argument in

this case, but respectfully requests thirty days to file its responsive brief, with

argument to be heard at the Court’s convenience thereafter. If plaintiffs believe they

are entitled to relief before March 26, 2019, they are of course instead free to try to

satisfy the requirements for injunctive relief pending appeal.

1. Plaintiffs in these consolidated cases challenge a final rule, Bump-Stock-Type

Devices, 83 Fed. Reg. 66514 (Dec. 26, 2018), interpreting the term “machine gun” as

used in the National Firearms Act and the Firearm Owners Protection Act to include

“bump stocks,” devices that “replace[] a semiautomatic rifle’s standard stock—the

part of the rifle that rests against the shooter’s shoulder—and enable[] the shooter to

achieve a faster firing rate,” District Court Op. 7. The rule is scheduled to go into

effect on March 26, 2019.

On February 25, 2019, after full briefing and oral argument, the district court

upheld the rule, holding that it is consistent with the Administrative Procedure Act

(APA) and was validly issued by then-Acting Attorney General Whitaker. All three

sets of plaintiffs immediately filed notices of appeal, and this Court consolidated the

cases on February 26.

2. Two sets of plaintiffs have now filed a motion to expedite full briefing and

oral argument in these cases on an extremely compressed timeline. Under plaintiffs’

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proposed schedule, the government would be required to file its brief just seven days

after the filing of plaintiffs’ opening brief, and a mere four days after the filing of

amicus briefs, in a case involving multiple significant statutory and constitutional

issues that will require extensive review of the government’s brief within the

Department. Contrary to plaintiffs’ suggestions, such review is not obviated by the

fact that—as is often the case—some (though not all) of the government’s attorneys

were involved in the district court litigation, given the common refinement of

arguments on appeal, including the need to respond to whatever new arguments

plaintiffs make in response to the district court’s comprehensive opinion. And that is

particularly true here, where there is new leadership in the Department since the

district court filings. Moreover, plaintiffs would require the government to respond to

(at least) two separate full-length opening briefs in that very limited timeframe, while

providing themselves a full seven days for their reply briefs. Even more remarkably,

plaintiffs’ schedule then calls for this Court to hear argument within three days after

the completion of briefing and to issue a decision no later than four calendar days

thereafter (including an intervening weekend).

This Court should reject plaintiffs’ attempts to force the government and the

Court to proceed at this breakneck pace. Although plaintiffs contend that they will be

irreparably harmed if the rule goes into effect on March 26, the appropriate remedy

when an appellant claims to face irreparable harm before the appellate process runs its

course is to seek an injunction pending appeal. Plaintiffs nowhere explain why they
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cannot seek that relief from the district court and, if necessary, from this Court. Nor

should they be allowed to end run the properly heavy burden for obtaining such relief

without plenary review of the district court, by trying to expedite their underlying

appeal to an unreasonable degree. If this Court were to conclude that an injunction

pending appeal is not warranted, then such significant expedition of the underlying

appeal is not appropriate; and, if this Court were to conclude that an injunction

pending appeal is warranted, then such significant expedition of the underlying appeal

is unnecessary.

3. If plaintiffs seek an injunction pending appeal in this Court, the government

is prepared to file its opposition within seven days of the filing, providing ample time

for this Court to decide whether to grant an injunction pending appeal before March

26. And if this Court were to decide to hold argument on such a motion, the

government agrees with plaintiffs that March 22 would be an appropriate date.

4. As explained, the government does not consent to plaintiffs’ proposed

schedule for briefing of the appeal itself. The government would, however, consent to

an expedited schedule that permits the Court to hear this appeal in May 2019. For

example, if plaintiffs file their opening briefs by March 27, the government could file

its response brief by April 26, with oral argument to be held in May.

5. Finally, the government also opposes any attempt on plaintiffs’ part to file

separate briefs in this appeal, unless the government either is permitted to file two

separate response briefs or is granted a commensurate extension of word limits.

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Respectfully submitted,

s/ Abby C. Wright
ABBY C. WRIGHT
(202) 514-0664
Attorney
Civil Division, Appellate Staff
U.S. Department of Justice
950 Pennsylvania Ave., N.W., Rm. 7252
Washington, D.C. 20530
FEBRUARY 2019

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CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing complies with the type-volume limitation of

Fed. R. App. P. 27(d)(2) because it contains 1,019 words, according to the count of

Microsoft Word.

/s/ Abby C. Wright

Abby C. Wright
Counsel for defendants
Abby.wright@usdoj.gov
USCA Case #19-5042 Document #1775047 Filed: 02/26/2019 Page 7 of 9

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Pursuant to D.C. Circuit Rules 27(a)(4) and 28(a)(1), undersigned counsel

hereby certifies as follows:

(A) Parties and Amici

The defendants in district court in these consolidated appeals, and appellees

here, are William Barr, in his official capacity; the U.S. Bureau of Alcohol, Tobacco,

Firearms and Explosives; Thomas E. Brandon, in his official capacity; and the United

States of America. The plaintiffs in district court, and appellants here, are Damien

Guedes; Firearms Policy Coalition, Inc.; Firearms Policy Foundation; Madison Society

Foundation, Inc.; Shane Roden; Florida Carry, Inc.; David Codrea, Owen Monroe,

and Scott Heuman.

No amicus curiae appeared in the district court.

(B) Rulings Under Review

The rulings under review are an order and memorandum entered on February

25, 2019, by Judge Dabney L. Friedrich, in the U.S. District Court for the District of

Columbia, No. 1:18-cv-02988-DLF, Dkt Nos. 26 and 27.

(C) Related Cases

The consolidated cases on review were not previously before this Court. The

following cases involve similar challenges to the appointment of Acting Attorney

General Whitaker: In re Grand Jury Investigation (D.C. Cir. 18-3052, oral argument held

Nov. 8, 2018, before Judges Henderson, Rogers, and Srinivasan), United States ex rel.
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Landis v. Tailwind Sports Corp. (D.C. Cir. No. 18-7143), Blumenthal v. Whitaker (D.D.C.

No. 1:18-cv-02644), O.A. v. Trump (D.D.C. No. 1:18-cv-02718), Michaels v. Whitaker

(D.D.C. No. 1:18-cv-02906), Codrea v. Whitaker (D.D.C. No. 1:18-cv-03086).

s/ Abby C. Wright
Abby C. Wright
Counsel for defendants
Abby.Wright@usdoj.gov
USCA Case #19-5042 Document #1775047 Filed: 02/26/2019 Page 9 of 9

CERTIFICATE OF SERVICE

I hereby certify that on February 26, 2019, I filed and served the foregoing with

the Clerk of the Court by causing a copy to be electronically filed via the appellate

CM/ECF system. I also hereby certify that the participants in the case are registered

CM/ECF users and will be served via the CM/ECF system. I also certify that I will

cause paper copies to be hand delivered to the Court on February 27, 2019.

s/ Abby C. Wright
Abby C. Wright
Counsel for defendants
Abby.Wright@usdoj.gov